Advertising

To borrow a phrase from Larry David and Teri Hatcher, my blog posts are real and they’re spectacular! Apparently not all law blogs can truthfully say the former.

Last month, the ABA Journal posted Ghostwriting for law blogs? Ethics are murky. It’s a topic that’s new to me, one not raised in any of the ethics inquiries or formal disciplinary complaints that I’ve responded to and reviewed over the years. The ABA Journal post includes insight from some of the more well-known voices on both professional responsibility and tech ethics.

But let’s back up for a moment. You might be asking your self: “self, what is Mike even talking about?” Good question.

“What are We Talking About?

The ghost-blogging I’m talking about is when an attorney pays someone else (a non-attorney) to write articles published under the attorney’s name on the attorney or law firm’s website. As a result, the world thinks the attorney wrote it when the attorney had little to no part in its creation.”

Again, not an issue I’ve encountered. But, an issue that raises ethics concerns.

Many law blogs are part of a lawyer’s website. Websites communicate information about the services that the lawyer provides. Per V.R.Pr.C. 7.1,

“A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement as a whole not materially misleading.”

The final sentence of Comment [1] is “whatever means are used to make known a lawyer’s services, statements about them must be truthful.”

So, let’s say that a firm focuses on Practice Area. And let’s say that the firm’s website includes a blog dedicated to Practice Area. Does the firm violate the rules by paying a content developer to ghostwrite the posts and then posting them under the “byline” of one of the firm’s lawyers?

My gut reaction was “is it really THAT misleading?” But then I paused. Because whenever we start asking whether something “is really THAT misleading,” we’ve established that it is, in fact, misleading.

In that it never arises, I don’t want to belabor the issue. Suffice to say, if your website or blog includes posts that you paid someone else to ghostwrite, check out the articles referenced above.

Finally, I proof read by reading aloud. Reading this blog about law blogs aloud reminded me of two things.

By way of background, last week, someone sent me copies of several pages from the “Lawyers” section of the Yellow Pages. I’m not going to tell you the geographic area. The sender chose to remain anonymous: no return address, no cover letter, no sticky note with a name. The sender used a highlighter to call my attention to a few ads that indicate that various lawyer “specialize in” certain areas of law.

I assume the sender thinks the highlighted ads violate the rules. Absent a cover letter, I don’t know.

I’m not a fan of anonymous complaints. If you think another lawyer’s ad violates the rules, make a complaint or an inquiry and we’ll let you know.

Back to Rule 7.4. The rule does not ban any & all use of “specializes” or its variants. Here’s what the relevant sub-part says:

“(d) a lawyer shall not state of imply that a lawyer is certified as a specialist in a particular field of law, unless:

(1) the lawyer has been certified as a specialist by a named organization, provided that the communication clearly states that there is no procedure in Vermont for approving certifying organizations, unless the named organization has been accredited by the American Bar Association to certify lawyers as specialists in a particular field of law; and

(2) the name of the certifying organization is clearly identified in the communication.”

Comment [1] is instructive. Per the Comment,

“[a] lawyer is generally permitted to state that the lawyer is a ‘specialist,’ practices a ‘speciality,’ or ‘specializes in’ particular fields of law, but such communications are subject to the ‘false and misleading’ standard applied in Rule 7.1 to communications concerning a lawyer’s services.”

In other words, if it’s true, Vermont’s rule appears to allow a lawyer to advertise that the lawyer specializes in a particular area of law.

As usual, I greatly appreciate the thoughts & stories that readers shared in response to the Friday intro. Remember: people care, help is available. If you (or someone you know) needs help, you can make a confidential inquiry of me, or, you can call the Vermont Lawyers Assistance Program.

Also, please remember this: when it comes to helping someone else, don’t think of it as whether you have a professional obligation to make a report. Think of it as helping another human being. As I blogged last March

“In my experience, lawyers are in position to recognize signs of substance abuse and mental health issues exhibited by another lawyer, whether a co-worker, colleague, or opposing counsel. Some lawyers wonder whether there is a duty to report substance abuse and mental health issues. Maybe. Rule 8.3, the reporting rule, is HERE.But how about this? How about coming it at from the perspective of helping another human being instead of analyzing whether another’s struggles trigger your duty to report? If a colleague, co-worker, or opposing counsel needs help, why not help them?

Yes, I get it, we are reluctant to get involved. Some of these might sound familiar:

It’s not my business.

I don’t know for sure, could’ve been she was having a bad day.

It helps my client that he isn’t doing his job.

The firm doesn’t need the bad publicity.”

When we’re dealing with a number like 108, those reasons for reluctance don’t cut it.

There’s a rule that prohibits a lawyer from counseling or assisting a client to engage in conduct that the lawyer knows is criminal or fraudulent. In 2016, a the Supreme Court adopted a Comment to the rule. The Comment makes it clear that lawyers may:

Vincenzo Leoncavallo was an attorney and judge in Italy. In 1865, he presided over a murder trial that involved a love triangle: the victim was stabbed to death by a romantic rival. The victim was Judge Leoncavallo’s son’s babysitter.

Fast forward to 1910. It was then, 108 years ago, that the first public radio broadcast took place. The broadcast was of 2 operas.

One of the operas had been composed by Judge Leoncavallo’s son. It involved a love triangle in which Silvio was stabbed to death by Canio, a jealous romantic rival.

Name the opera.

Bonus: name the character for whom Silvio and Canio shared dueling affections.

Update: March 28 at 3:43 PM. Avvo’s Josh King was nice enough to let me know that the $1 billion is only on tv ads. Josh indicates that the amount spent on all attorney advertising is between $4 and $5 billion.

This year, it’s estimated that U.S. lawyers and law firms will spend over $1 billion on advertising.

an all-female firm that uses the catchphrase “Ever Argue with a Woman?“

an attorney whose ads made him such a celebrity that a mother threw a birthday party for her 2-year-old in which the theme was…..the attorney.

a lawyer whose alter ego is the Texas Law Hawk.

the lawyer who originated the campaign “If you are injured in a car accident, call us immediately” and whose firm now spends between $30 and $40 million per year on advertising.

The article also includes an interesting recap of the history of lawyer advertising. From the days when the ABA’s Canons of Professional Ethics banned nearly all advertising and, referring to lawyer advertising, included the ominous statement that “[t]he future of the republic, to a great extent, depends upon our maintenance of justice, pure and unsullied,” to the Supreme Court’s historic decision in Bates v. State Bar of Arizona, to today’s landscape.

I’ve worked in the Professional Responsibility Program since 1999. We’ve not received many advertising complaints. Maybe 5 or 6 in 18 years.

I’ve never been a huge fan of the advertising rules. I’m not against them, just not a fan.

The Association of Professional Responsibility Lawyers recommended that the ABA streamline its Model Rules on advertising. The comment period closed on March 1. I’m curious to see how the ABA responds.